Senator Hanson-Young -Does the Law Council have a general view, then, about legislation that is drafted and enacted by parliament that is so broad that the question is how anybody is going to know until it is actually tested?
Ms Donovan -The Law Council's position, consistent with the previous witnesses, is that people should be able to know in advance precisely the type of behaviour which will attract criminal sanction. To the extent that an offence provision is not clear in that regard, it creates fear and uncertainty in the community and puts pressure on police and prosecutors, who themselves are often left scratching their heads about whether they should act and how.
Senator Hanson-Young -Do you think it creates problems when it comes to the point of a particular case being challenged or prosecuted?
Ms Donovan -Yes, it can create problems in a particular prosecution. One of the things, for example, which Clarke concluded in the Clarke inquiry, which examined 102.7 of the Criminal Code, was that it would be almost impossible to instruct a jury on this offence provision because there were so many different interpretations of it. Whether or not it could be subject to challenge I think is debatable. Because of the human rights framework in Australia, there is not a clear pathway to challenging some of this legislation on the basis that it is vague or uncertain, but there are always avenues.
Senator Hanson-Young -Thank you.